Commissioner for Railways (NSW) v O'Brien [1958] HCA 20

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Taylor JJ. Commissioner for Railways (NSW) v O'Brien [1958] HCA 20

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that the appeal to that court be allowed with costs and that a verdict and judgment in the action be entered for the defendant with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 5 Dixon C.J.

I have had the advantage of reading the judgment prepared by Fullagar and Taylor JJ. I agree in their Honours' reasons and conclusion but I desire to add the following observations for myself.

It has appeared to me to be a misconception to treat this case as one depending upon the duty of an employer of care in providing for the safety of premises for his workmen. The duty which is relevant to the facts of this case is another sub-division or aspect of the employer's general duty to take reasonable precautions to safeguard his men from injury. It was formulated, with some regard for precision, three or four years ago in this Court in a case which unfortunately did not find its way into the reports. [*] We said that the employer was under a duty, by his servants and agents, to take reasonable care for the safety of the employee by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury: O'Connor v. Commissioner for Government Transport [1] .

1. Now reported at p. 225 of this volume—Ed. 2. (1954) 100 C.L.R. 225.

If I were able to arrive at the conclusion that the evidence discloses a case fit to be submitted to a jury of a breach of this duty I should think it proper to order a new trial. But I am of opinion that on the evidence a finding that a breach of this duty occurred would be unreasonable. The task of moving the trestles and planks was a simple one, a familiar part of a painter's duty. No instructions how to perform it were required. It was only necessary to wait for the departure of the train to lower the gear safely from some part of the iron roof. There is indeed no very adequate reason for thinking that the gear could not have been taken back through some window, in the same way as it had been put out on the iron roof of the verandah. There was only the reported dictum of a housemaid. It seems to me a far-fetched idea that Seckold became, in the absence of Dix, a superior whose authority O'Brien became bound to obey and for whose negligent direction the commissioner would be vicariously liable. Obviously the men were both engaged on the same job and even if Seckold's assertion that automatically because of his brief seniority he took charge could be accepted as evidence of a usage or rule of the commissioner's service, it by no means follows that he was invested with authority from the commissioner to direct the plaintiff to traverse the asbestos roof bearing the trestles. It is, moreover, only too clear that it was a course which the two in combination adopted for themselves. The asbestos roof was constructed for no such purpose and to treat it as a way or path improperly or inadequately safeguarded appears unreal and impossible. Indeed if the commissioner had fitted it up, for example, with a catwalk for the purpose of carrying gear from one side of the station to the other, he might well have been charged with employing a most negligent system of working, had a man fallen therefrom and suffered injury. The fact is that to treat the roof as an appointed path or way for the carriage of the trestles and then to charge the commissioner with negligence in failing to provide a catwalk or net is to place the case in an altogether erroneous, if not absurd, light. But that is how it went to the jury. For the plaintiff it is said that it was no fault of his, he took wider ground. He suggests that the defendant commissioner was well content with the narrower and, as we think, erroneous ground. Be it so. The defendant at all events objected that there was no evidence to support the issue. Clearly the verdict could not stand. The only question is whether the plaintiff is entitled to have the case submitted to another jury. To that question I agree a negative answer must be given, because there is no view of the facts appearing in evidence which would support a verdict for the plaintiff.